First Appearances - Tips From Justice Murphy
Family law practitioners have experienced significant changes during 2018. With the introduction of PD 2 of 2017 in the Federal Circuit Court, the pilot project in the Brisbane Registry of the FCC and many more recent legislative amendments passed and proposed, never has the need for pragmatic, precise and professional advocacy been more important. No more so than during interim applications. Recently, in Matenson, Justice Murphy of the Full Court of the Family Court provided some helpful hints and recommendations in order to assist judges sitting in busy duty lists.
Some of the themes in Justice Murphy’s decision resonate in PD 2 of 2017. Often referred to as the “10 page rule”, this practice direction was designed to “ensure that proceedings are conducted expeditiously and consistently with the objectives of early identification of the issues in dispute requiring adjudication and the efficient use of judicial resources.”
As I said during a presentation to practitioners in Lismore and Maroochydore in February and March of this year, it came of little surprise to me that the courts would take upon a more active role in requiring a more disciplined approach to advocacy, particularly during first appearances. It has long been my (perhaps controversial) belief that we could be doing better at these first appearances adopting a philosophy that a rising tide lifts all boats.
In Matenson, Justice Murphy sat alone as the Full Court and had before him an appeal scenario that is not uncommon for most family law practitioners. Briefly it was a parenting matter where there was an existing parenting order, the Mother had not been providing time, the Father was seeking time be reinstated. The judge, dismissed all applications and set the matter down for final hearing, some several months away. His Honour upheld the appeal, essentially on the grounds that the judge had not engaged with the issues. However, under the heading “Additional Observations” Justice Murphy added;
- I have already made comment on the extraordinary size of the lists before judges of the Federal Circuit Court. It is by no means uncommon for in excess of 30 matters to be listed. By reason of simple arithmetic the average time that can be allotted to each matter as a consequence surely gives pause for thought as to whether proper process can be invoked and the requirement for individual justice met where interim decisions affecting children’s lives are involved.
- While simple directions, consent orders and the like can of course be accommodated within lists of that size, I am unable to see how applications for interim relief – albeit “truncated” in their length and detail – properly can be.
- Increasingly, appeals from interim parenting proceedings reflect the inordinate pressure which the judges making decisions of that type are under. The pressure for hardworking judges seeking sincerely to do the best they can in difficult circumstances is crushing. It is creating appeals that would otherwise not occur. Many of those appeals are based, validly, on assertions of procedural unfairness and assertions that issues raised by parties – including important issues – are not engaged with and reasons for decisions affecting children’s lives are not being given.
- There is a plain need for expedition in interim decision making and a plain need for sufficient human and other resources to meet that need. However, the need to maximise the number of cases heard and the speed at which they are heard should never take the place of proper process – even if, as insufficient resources dictate, that process is “significantly curtailed”, and even if, as might reasonably be expected, reasons for decision – particularly ex tempore reasons – lack the elegance or expansiveness that added time might afford them.
- Authority from all jurisdictions and, crucially, the High Court are all to like effect: adequate reasons are not necessarily lengthy reasons. Adequate reasons have regard to the particular circumstances of the proceedings and the nature and extent of the issues to be determined. Yet adequate reasons are a fundamental part of dispensing justice.
- The factors just referred to have, or should have, an additional effect. Legal practitioners owe their first and fundamental duty to the court and the administration of justice. Much can be done by them – and consistent with their duty should be done by them – to assist judges faced with the issues just referred to.
- Clear and precise identification of the nature of the proceedings; their basis in statute and decided authority and, crucially, the issues to be decided expressed succinctly and cogently, should be the rule, not the exception.
- There should be a clear understanding of what the Act and authority dictates as to the nature of the relevant judicial determination and the limitations inherent in the relevant process. The passage from Goode quoted above has particular resonance. Concise, accurate and cogent references to agreed or uncontentious facts and less contentious matters must form the parameters of what is argued and sought by way of orders.
- Draft orders should always be provided and, rather than being produced by rote, should reflect the evidence and the inherent restrictions just referred to. Far too often draft orders, when indeed they are provided, do not reflect that appropriate thought has been given to whether the evidence, confined in the manner earlier described, justifies any such order. All too frequently orders are sought for which there is no evidentiary foundation at all.
- The matters just referred to should, as a minimum, be reflected in a document for the judge. This is by no means to suggest a lengthy (and consequently expensive) document – in the vast majority of cases such a document, much of which could be in dot point form, can be confined to a page or two.
- Time spent waiting for a hearing – or indeed the days ahead of a hearing – can be used productively by exchanging such documents and agreeing upon the very same uncontroversial facts and truncation of issues that can, and should, be dealt with in the necessarily confined interim process.
- Importantly, a practitioner’s primary duty to the court and the administration of justice includes assisting the judge by helping to identify and crystallise issues, evidence and the like when a party is self-represented. That is not a duty exclusive to, or confined to, the ICL.
- These things are not difficult. They should be a perfectly unexceptional part of proper professional practice (and the rendering of a fee which has its basis in the provision of proper professional services).
- I hasten to say that my comments are not directed specifically to, or prompted by, anything done or not done by the legal practitioner or judge in this case. Rather, they are of general application and are born of increasing exposure to – and frustration with – characteristics increasingly common to appeals from interim decisions – particularly interim parenting decisions - and the consequences for the parties of those appeals.
Thiele’s Top 10 Tips for First Appearances.
In the Brisbane Registry, a pilot referred to as the Brisbane Case Management Initiative has perhaps created a greater emphasis upon the need for more disciplined advocacy. So, reading the PD, Matenson and the impact of the pilot together, I have come up with the following tips as a guide.
- What is the essential and most important issue requiring determination. This question should be on your mind the moment your client walks into your office. Give realistic advice about methods of resolving the dispute without court and whether “chunking” a mediation into smaller parts is a better option – e.g. just getting first time arrangements and a family report in place.
- Know the nature of the proceedings.What are the basic elements of the relief being sought (e.g. exigent circumstances Morgan v Miles, e.g. a likely property entitlement and a source of funds in Strahan applications). What is the basis of the relief in statute and decided cases.
- Know how a Court might approach your proceeding. E.g. Goode type matters as compared to interim spousal maintenance applications.
- Keep your “Orders Sought” contained. Only those disputes that need determination on the first date need expression and only those orders about which there is evidence should be pursued.
- The evidence must meet the elements required to support the Orders Sought. Set out concisely the agreed facts and/or non-controvertible facts. The asserted (or disputed facts) should be clearly and concisely stated. Often chronologically is best. Avoid hearsay or opinion (best practice even on interim hearings. DO NOT draft witness statements that are generalised, unparticularised, contain rhetoric, or are conclusions).
- Talk to your opposition. There was this invention in 1875 by Alexander Graham Bell. Use it. Use it well in advance of the first return date. Work out what orders / issues are not in dispute and what may need to be argued. Will the first return be the best date to argue ?
- Draft orders. Have your draft orders. Use your templates to guide you but be prepared to discard all the unnecessary provisions.
- Outline and Chronology. Avoid war and peace. If possible, restrict to no more than two pages each of the most important points / events. This is a useful document particularly if the decision is reserved. The Outline should include the documents you “read” and the Chronology should identify the “Agreed” facts.
- Get To Court Early and Attempt Settlement. If not the entirety of interim issues then at least the non-controversial matters. Fun fact – the Courts usually open at 8:30 am.
- Be An Advocate. Your motto should be short and sweet (or like I said in the above article, make yourself a small target). Know your case inside and out. Answer the judge’s question. Usually “yes” or “no” is the best approach. If you don’t know an answer (and you can’t get a response from your client) “I do not know” is also acceptable. Do not mislead the court. Do not rely upon evidence from the bar table. Explain the outcome to your client and any obligations upon your client flowing from the order.